S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   394

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of  A. JOHN, COLTON -- read once and referred to the
  Committee on Labor

AN ACT to amend the labor law, in relation to  contractors  who  contin-
  ually use subcontractors who fail to pay the prevailing wage

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Subparagraph 1 of paragraph b of subdivision 3 of  section
220-b  of  the labor law, as amended by chapter 241 of the laws of 2002,
is amended to read as follows:
  (1) When  two  final  determinations  have  been  rendered  against  a
contractor,  subcontractor, successor, or any substantially-owned affil-
iated entity of the contractor or subcontractor, any of the partners  if
the  contractor  or  subcontractor  is a partnership, any officer of the
contractor or subcontractor who knowingly participated in the  violation
of this article, any of the shareholders who own or control at least ten
per  centum  of the outstanding stock of the contractor or subcontractor
or any successor within any consecutive six-year period determining that
such contractor, subcontractor, successor,  or  any  substantially-owned
affiliated  entity  of the contractor or subcontractor, any of the part-
ners or any of the shareholders who own or  control  at  least  ten  per
centum  of the outstanding stock of the contractor or subcontractor, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article has [wilfully] WILLFULLY failed to pay the
prevailing rate of wages or to provide supplements  in  accordance  with
this  article,  OR  HAS  ENGAGED IN A PATTERN OR PRACTICE OF CONTRACTING
WITH SUBCONTRACTORS WHO WILLFULLY FAIL TO PAY THE PREVAILING WAGE OR  TO
PROVIDE  SUPPLEMENTS IN ACCORDANCE WITH THIS ARTICLE, whether such fail-
ures were concurrent or consecutive and whether or not such final deter-
minations concerning separate public work projects are  rendered  simul-
taneously,   such   contractor,   subcontractor,   successor,   or   any

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD02548-01-9

A. 394                              2

substantially-owned affiliated entity of the contractor  or  subcontrac-
tor,  any  of the partners if the contractor or subcontractor is a part-
nership or any of the shareholders who own or control at least  ten  per
centum  of the outstanding stock of the contractor or subcontractor, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article shall be ineligible to submit a bid on  or
be  awarded  any public work contract or subcontract with the state, any
municipal corporation or public body for a period of five years from the
second final determination, provided, however, that where any such final
determination involves the falsification of payroll records or the kick-
back of wages or supplements, the contractor, subcontractor,  successor,
or  any  substantially-owned  affiliated  entity  of  the  contractor or
subcontractor, any partner if the contractor or subcontractor is a part-
nership or any of the shareholders who own or control at least  ten  per
centum  of the outstanding stock of the contractor or subcontractor, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article shall be ineligible to submit a bid on  or
be awarded any public work contract with the state, any municipal corpo-
ration  or  public  body for a period of five years from the first final
determination.
  S 2. Paragraph c of subdivision 3-a of section 220 of the  labor  law,
as  added  by  chapter  137  of  the laws of 1985, is amended to read as
follows:
  c. The fiscal officer may require any person or corporation performing
such public work to file with the fiscal  officer  within  ten  days  of
receipt  of  said  request,  payroll  records,  INCLUDING  THE SCHEDULES
REQUIRED BY SUBDIVISION SIX OF THIS SECTION, sworn to as to their valid-
ity and accuracy, requested by the fiscal officer, for said public  work
or  for  any  public  or private work performed by said person or corpo-
ration during the same period of time as said public work. In the  event
said  person  or  corporation fails to provide the requested information
within the allotted ten days, the fiscal officer shall,  within  fifteen
days,  order the department of jurisdiction to immediately withhold from
payment to said person or corporation up to twenty-five percent  of  the
amount, not to exceed one [hundred thousand] MILLION dollars, to be paid
to  said  person or corporation under the terms of the contract pursuant
to which said public work is being performed. Said amount withheld shall
be immediately released upon receipt by the department  of  jurisdiction
of  a  notice  from  the  fiscal officer indicating that the request for
records had been satisfied.
  S 3. Paragraph (c) of subdivision 1 of section 234 of the  labor  law,
as  added  by  chapter  777  of  the laws of 1971, is amended to read as
follows:
  (c) to examine the books, documents  and  records  pertaining  to  the
wages paid to, and the hours of work performed by, service employees AND
TO REQUIRE THE IMMEDIATE PRODUCTION OF RECORDS REQUIRED TO BE MAINTAINED
PURSUANT  TO SUBDIVISION ONE OF SECTION TWO HUNDRED THIRTY-THREE OF THIS
ARTICLE. IF A CONTRACTOR OR SUB-CONTRACTOR FAILS TO RESPOND  WITHIN  TEN
DAYS  TO  SUCH A REQUEST, THE FISCAL OFFICER SHALL, WITHIN FIFTEEN DAYS,
ORDER THE  DEPARTMENT  OF  JURISDICTION  TO  IMMEDIATELY  WITHHOLD  FROM
PAYMENT  TO  SAID PERSON OR CORPORATION UP TO TWENTY-FIVE PERCENT OF THE
AMOUNT, NOT TO EXCEED ONE MILLION DOLLARS, TO BE PAID TO SAID CONTRACTOR
UNDER THE TERMS OF THE SERVICE CONTRACT. SAID AMOUNT WITHHELD  SHALL  BE
IMMEDIATELY RELEASED UPON RECEIPT BY THE DEPARTMENT OF JURISDICTION OF A
NOTICE  FROM  THE FISCAL OFFICER INDICATING THAT THE REQUEST FOR RECORDS
HAD BEEN SATISFIED;

A. 394                              3

  S 4. Subdivision 7 of section 235 of the  labor  law,  as  amended  by
chapter 547 of the laws of 1998, is amended to read as follows:
  7.  When, pursuant to the provisions of this section, two final orders
have been entered against a contractor, subcontractor, successor, or any
substantially-owned affiliated entity of the contractor  or  subcontrac-
tor,  any  of the partners if the contractor or subcontractor is a part-
nership, any of the five  largest  shareholders  of  the  contractor  or
subcontractor,  any officer of the contractor or subcontractor who know-
ingly participated in the violation of this article within  any  consec-
utive  six-year period determining that such contractor or subcontractor
and/or its  successor,  substantially-owned  affiliated  entity  of  the
contractor  or  subcontractor,  any  of  the partners or any of the five
largest shareholders of the contractor or subcontractor, any officer  of
the  contractor  or  subcontractor  who  knowingly  participated  in the
violation of this article has willfully failed  to  pay  the  prevailing
wages  in accordance with the provisions of this article, OR HAS ENGAGED
IN A PATTERN OR PRACTICE OF CONTRACTING WITH SUBCONTRACTORS WHO WILLFUL-
LY FAIL TO PAY THE PREVAILING WAGE OR TO PROVIDE SUPPLEMENTS IN  ACCORD-
ANCE WITH THIS ARTICLE, whether such failures were concurrent or consec-
utive  and  whether or not such final determinations concerning separate
public building service  contracts  are  rendered  simultaneously,  such
contractor, subcontractor, successor, and if the contractor, subcontrac-
tor,  successor,  or  any  substantially-owned  affiliated entity of the
contractor or subcontractor, any of the partners if  the  contractor  or
subcontractor  is a partnership, or any of the five largest shareholders
of the contractor or subcontractor, any officer  of  the  contractor  or
subcontractor  who knowingly participated in the violation of this arti-
cle, or any successor is a corporation, any officer of such  corporation
who  knowingly  participated  in  such  failure,  shall be ineligible to
submit a bid on or be awarded any public building  service  work  for  a
period of five years from the date of the second order, provided, howev-
er,  that  where  any  such  final  order  involves the falsification of
payroll records or the kickback of wages, the contractor, subcontractor,
successor, substantially-owned affiliated entity of  the  contractor  or
subcontractor, any partner if the contractor or subcontractor is a part-
nership  or  any  of  the five largest shareholders of the contractor or
subcontractor, any officer of the contractor or subcontractor who  know-
ingly  participated in the violation of this article shall be ineligible
to submit a bid on or be awarded any public building service contract or
subcontract with the state, any municipal corporation or public body for
a period of five years from the date of the first final  order.  Nothing
in this subdivision shall be construed as affecting any provision of any
other law or regulation relating to the awarding of public contracts.
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.